RAMAN AND ORS . Vs. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM 695001 AND ORS.

JUDGEMENT

(1.) This writ petition is filed seeking for a writ of mandamus directing respondents 1 and 2 to give police protection and assistance to the petitioners to reconstruct the iron fence on the boundary separating the property of the petitioners from that of the respondents 3 to 6 so as to prevent them from trespassing into the petitioners' property and committing acts of waste therein.

(2.) Dispute between the parties centres round the ownership and possession of 50 cents of property in Poolakode amsom and desom in Kozhikode Taluk as per Kanam deed No.11/1969 of Sub Registrar's Office, Chathamangalam. Having obtained title and possession to the said property by virtue of the five settlement deeds, petitioners 1 and 2 have been in absolute possession and enjoyment of the property. Respondents 3 to 6 are residing on the eastern side of the property of the petitioners and they have two ways to their property. According to the petitioners, respondents 3 to 6 destructed a portion of the compound wall and made an attempt to carve out a pathway. Hence, the petitioners filed O.S.No.167 of 2015 before the Additional Munsiff's Court-II, Kozhikode against respondents 3 to 6 for a decree of prohibitory injunction. An Advocate Commission was taken out by the petitioners and the Advocate Commissioner filed Ext.P1 report and plan before the court below. Respondents 3 to 6 remained ex parte to the proceedings and consequently, Ext.P2 decree and Ext.P3 judgment were passed by the learned Munsiff. Consequent to the passing of the decree, petitioners filed Ext.P6 Execution Petition before the Munsiff's Court to execute the decree. Thereafter, the petitioners filed Ext.P7 application for setting aside the ex parte order along with Ext.P8 petition to condone the delay. It is the case of the petitioners that on 7.9.2018, the respondents again made an attempt to trespass into the property by breaking the iron fence. The petitioners filed Ext.P9 complaint before the second respondent to provide police protection and assistance to reconstruct the iron fence which has been destroyed by the respondents. The second respondent did not take any action pursuant thereto. Hence this writ petition is filed for police protection for the life and property of the petitioners and also enable the petitioners to reconstruct the iron fence.

(3.) One of the contentions, which has been raised before this Court was the maintainability of the writ petition on the ground that the petitioners could not approach the writ court for the purpose of determining disputed questions of fact, especially, Ext.P7 application to set aside Ext.P2 decree and Ext.P3 judgment is pending adjudication before the competent civil court. The petitioners, on the other hand, contended that the State is bound to give protection to the life and property of the petitioners as guaranteed under Article 21 of the Constitution of India and are duty bound to give effect to the decree pronounced by the competent civil court.